Sunday, December 23, 2012

How do you improve America's resource-poor network of legal services? Harvard professor James Greiner believes you have to put it to the test.

Almost every morning, staffers at Greater Boston Legal Services arrive at work to find a line of people waiting on the street outside their offices. These people are there because they need help: some because they're being evicted, others because they're chasing down child support payments, still others because they're filing for divorce.

Lawyers are expensive, and for millions of low-income people across the United States, nonprofits like Greater Boston Legal Services offer the best - perhaps the only - chance at professional help. Staffed by civic-minded attorneys and paid for with public money and private donations, these organizations represent our society's primary mechanism for making sure that when it comes to civil proceedings, all people, including the very poor, are treated equally before the law.

For decades, it has been an article of faith among those who have devoted their lives to the cause of legal aid that if only the system had more funding, it could do more good and help more people. But lately, a difficult new question is being asked of the legal services community: What evidence do they have that the help they're offering even makes a difference - and that they're allocating their scarce resources as effectively as possible?

That is the challenge being laid down by a group of critics led by James Greiner, a professor at Harvard Law School. Greiner believes passionately in providing free legal assistance to the poor, but he is dismayed by what he sees as a lack of data on how it's delivered and how it affects people's lives. For all the good they think they're doing, Greiner argues, the fact is that legal services providers are working off untested assumptions and operating largely in the dark.

Given the noble intentions and tireless dedication of the individuals who staff legal clinics around the country, it feels almost indecent to question the effectiveness of the help they're providing. But from where Greiner sits, the sanctity of these efforts - and the fact that the system provides for just two attorneys per 10,000 low-income people - is precisely why it matters. In particular, as he sees it, we know very little about how legal service providers ought to determine which clients to take and which to turn down; in many cases, he argues, they may be wasting precious time and money on cases where they're unlikely to have an impact.

"Most folks have concluded that we're never going to be able to give a full attorney-client relationship to every person who has a legal problem," Greiner said last week. "The funding is just never going to be there. So you have to take steps short of that, in an attempt to meet the need."
For Greiner, the solution is one that has already revolutionized other fields, most notably medicine. He is part of a budding movement that wants to introduce randomized experiments and put hard numbers to what have traditionally been treated as unquantifiable social problems. In medicine, he and his allies point out, such tests have revealed that once-common treatments - hormone replacement therapy, for instance - were not only ineffective but harmful. "The mission," Greiner said, "is to make law more evidence-based, more rational and scientific."

Among those who labor in the legal services world, this insistence on randomized testing has been met with skepticism, even defensiveness - particularly after Greiner's first study on the topic found that one group of people who were offered representation by law students working at the Harvard Legal Aid Bureau were no more likely to prevail in their court cases than people who were not.

Those results came as a jarring surprise to some on the bureau's staff, and the study sparked consternation among legal aid workers all over the country. Some worried that Greiner's findings would be used as justification to defund legal aid, while others raised an ethical objection to the very idea of collecting the kind of data he'd like to see: It amounts to experimenting with vulnerable people's lives.

Randomized trials are the gold standard in the world of science, and for good reason: Done right, they can generate highly precise insights about how the world works. To determine the effectiveness of a new drug, researchers give it to some patients and not others; if the people in the first group fare significantly better than the control group, that sends a clear signal about the efficacy of the medicine.

So far, these types of controlled experiments have proven difficult to run on social problems. For Greiner, a soft-spoken man who favors turtleneck sweaters and loves Harry Potter, finding ways to bring the power of quantitative analysis to bear on the legal system has been a calling since 2002, when he decided, after working as a litigator, to get a doctorate in statistics. But it was not until a few years ago that the recently tenured professor turned his attention to legal services, having become convinced that in order for our democracy to truly work, all people - not just those who can afford it - must have "access to justice."

What Greiner found when he began studying legal services was a complex, decentralized, and woefully underfunded endeavor that was helping only a fraction of the people in need. Across the country, hundreds of organizations worked more or less separately, without sharing information in any systematic way about the kinds of people who were coming to them for help and what exactly they needed. Most importantly, Greiner noted, no one had ever done any rigorous tests to see how much good these organizations were actually doing.

When he first approached the Harvard Legal Aid Bureau, an organization staffed by law students, Greiner made his pitch this way: Given that the number of people who come to HLAB looking for help far exceeds the number they can offer representation, why not randomize the sorting process, create a control group, and try to learn something about the organization's impact? Initially, Greiner proposed running the study using either domestic abuse cases or eviction cases.

The answer from HLAB's leaders was a firm no. "We pretty quickly decided we weren't willing to do that," said faculty director David Grossman, explaining that the student volunteers simply had too much confidence that their sorting methods were working to jettison them in favor of a random number generator. These methods, which took into account not only the likelihood that HLAB could make a difference in a particular case, but also the urgency of the case and the number of people affected by its outcome, were based on years of experience and institutional knowledge. Given the high stakes in eviction and domestic abuse cases, Grossman said, "randomizing away" clients HLAB would take under normal circumstances felt deeply immoral.

HLAB's reluctance pointed to one of the main hurdles Greiner is facing as he looks for more legal services providers to work with on experiments: For an organization to do what he's asking involves an admission that what they do normally might be ineffective. "Given our experience, we feel like we can pick the cases where we can make a difference," said Greater Boston Legal Services executive director Jacquelynne Bowman. "But if it's randomized, then we may miss out on providing representation to someone who truly needs it."

Convincing professionals to doubt their methods is never easy, said Greiner, but it might be especially hard in the world of legal services. "Is it surprising that not every single legal aid attorney possesses the kind of self-doubt that might cause her to desire to undergo a rigorous evaluation of her...activities?" he asked. Nevertheless, Greiner believes this kind of self-doubt is important, precisely because people in the trenches can't always look objectively at what they're doing. "I don't deny that...experiential observation is worthwhile," he said. "But my job is to question and test it, because it turns out that human beings sometimes stink at figuring out what works and what doesn't from day-to-day observations."

The Harvard Legal Aid Bureau ultimately agreed to work with Greiner when he proposed running a study on people seeking unemployment benefits. This was an area of their practice they were already unsure of, said Tim Visser, the group's president, with low enough stakes that the moral issues were not prohibitive. According to Visser, the students saw potential in Greiner's study. In theory, it promised to reveal patterns that would tell them what to look for in clients.

Greiner's surprising results, which were later published in the Yale Law Journal, indicated that people who were offered legal help from HLAB were no more likely to prevail in their cases - and worse, had to wait longer for their cases to be resolved - than those who were not. "That right there was a revelation," said Greiner. More than 90 percent of people offered HLAB's help received it; among those turned away, at least 39 percent found representation elsewhere. The fact that both groups scored a win rate of around 70 percent meant that getting help from HLAB was not increasing people's chances as much as had been assumed.

HLAB swiftly responded to the study, sending a letter to colleagues in which they explained their participation and pointed out what they regarded as flaws in Greiner's methodology. The letter was meant in part to address the concerns of legal aid workers around the country who had begun to worry about the study's political implications. "When I first read the HLAB study and when I first heard Jim speak, I thought, ‘Oh, no. This is going to provide all kinds of fodder for people who just hate lawyers, or people who just hate poor people, and it's going to cause all kinds of problems for us,'" said Steven Eppler-Epstein, the executive director of Connecticut Legal Services. But after speaking to Greiner, Eppler-Epstein concluded that the professor had a real, long-range plan to improve the legal services world, not hurt it, and today he is one of Greiner's closest allies.

Greiner himself knows that on the surface, his study looks bad for legal services. But he cautions against jumping to easy conclusions, and insists that what his findings actually indicate is that people who were savvy enough to approach the aid bureau in the first place were already more likely to do well. So the deeper need may lie elsewhere. "There's a whole set of people who were not even contacting HLAB," Greiner said. "And my speculation is that they're the ones who actually needed the help."

Greiner has initiated five more randomized experiments since the HLAB study. One showed that having a lawyer in eviction cases made it much more likely a client would get to keep his home. Others are currently in progress: One is about divorce, one involves people seeking social security disability benefits, and one involves federal prisoners making civil rights complaints. Greiner's hope is to devote his career to running randomized studies across the country; over time, he says, the results will accumulate into a profound source of practical knowledge for service providers. The question is, how much time will it take?

"One of my concerns is he's working at such a level of detail...that while the findings are valuable and, certainly, as I understand it, scientifically unassailable, I don't know how much they tell us about what we should or should not be doing on a day to day basis in legal aid," said Lonnie Powers, head of the Massachusetts Legal Assistance Corporation, which provides funding to providers. "Nor do I know how many decades we'd have to spend doing studies like this to really get effective information that covers the whole scope of what legal services provides."

Ultimately, Greiner and his allies hope to reform the legal services industry from the ground up. One thing Greiner suspects his work will ultimately show is that lawyers, per se, are not needed to handle all legal problems. Instead of trying to raise money to hire more lawyers, he said, we ought tackle the scarcity problem by identifying the types of cases that are less complex and thus could be competently handled by people whose time is less expensive - like paralegals.

Getting there will require a lot more randomized testing, Greiner said. And more testing will require an open mind on the part of the overworked, underfunded industry it is putting under the microscope.

"It really comes down to political will and the desire to find out the objective truth," Greiner said. "It's hard to persuade people who have invested so much time and money into constructing something that they think works...that it may not be doing what they think it's doing."

Marijuana stores in Colorado and Washington won't be open for at least a year, but new laws legalizing the drug took full effect in both states this month. Washington's Initiative 502 kicked in on Dec. 5, sparking a midnight gathering of marijuana enthusiasts near Seattle's Space Needle to celebrate the occasion. Colorado Governor John Hickenlooper formalized Amendment 64 into his state's constitution just days later.

Though President Obama said there wouldn't be a federal campaign against individual marijuana users in Colorado and Washington, U.S. Attorneys in both states have reminded citizens that their responsibility to enforce pot prohibition remains unchanged. It remains to be seen what specific action they will take, but Attorney General Eric Holder said that a federal policy pronouncement is coming "relatively soon."

The Department of Justice could file a suit to enjoin the state laws, but that would be a bold attempt to subvert the will of the people, and there's no guarantee the suit would succeed. They could also try using civil asset forfeiture laws to seize cash, property and marijuana from the new dispensaries, which has been their primary tactic against medical marijuana dispensaries. They could even arrest the state employees who will oversee marijuana regulations, as U.S. Attorneys Mike Ormsby and Jenny Durkan threatened to do last year when Washington Gov. Christine Gregoire sought guidance with the state's proposed medical marijuana law.

But Paul Armentano, Deputy Director of the National Organization for the Reform of Marijuana Laws (NORML), is hopeful that the Obama administration will do none of the above.

"The federal government has been using most of its resources in places with less restrictive marijuana regulations, like California and Montana," Armentano said. "Compare that to a state like Colorado, which has more regulations and has largely been left alone."

Marijuana cultivation and commerce will be tightly controlled in Colorado and Washington, so the federal government may give them some leeway to experiment. But the states are also expected to make big bucks from marijuana sales, and U.S. Attorneys have previously cited the potential for profit as a key motivator in their war against all pot, medical or otherwise.

And while it's true that Colorado has attracted less federal attention than California, which has taken the brunt of the U.S. Attorneys' asset forfeiture campaign, Colorado dispensaries haven't been completely immune. By threatening their landlords, U.S. Attorney John Walsh shut down 57 Colorado dispensaries this year without filing a single criminal charge. In Oregon, where marijuana legalization was rejected by 53 percent of voters in November, federal authorities have seized more than $255,000 in cash and six properties in the last 15 months.

Change Inside the Beltway

While marijuana laws in the states have changed dramatically in the last 15 years, attitudes on Capitol Hill have evolved at a slower pace. And until congress starts taking marijuana reform seriously, federal policy is unlikely to budge.

But with public support for legalization at an all-time high and two states openly revolting against prohibition, D.C. lawmakers may start coming around. A bipartisan group of U.S. congressmen introduced a bill last month that would amend the U.S. Controlled Substances Act to instruct the federal government not to interfere with state marijuana laws.

The bill is co-sponsored by longtime marijuana reform advocates like Rep. Barney Frank, D-Mass., and Ron Paul, R-Texas, but it has also won the support of Colorado Republican Rep. Mike Coffman, who voted against Amendment 64 and strongly opposes marijuana legalization. Coffman cited his obligation to respect the will of the voters as his reason for co-sponsoring the bill.

Medical Acceptance Still Growing

Even as the feds ponder their moves in the West, winds of change keep blowing in the East. New York legislators intend to introduce a medical marijuana bill in January, hoping to make New York the 19th medical marijuana state after Massachusetts voters legalized it in November.

In New Jersey, the state's first medical marijuana dispensary opened Dec. 6 following months of debate between marijuana advocates and Gov. Chris Christie. Christie inherited the law's implementation from the previous administration and complained that it was too lax to ward off federal intervention.

The most recent skirmish between Christie and marijuana advocates was over sales tax. Christie's administration chose to impose a 7 percent tax on medical marijuana sales, even though other pharmaceutical sales in the state are tax-exempt.

"If you use medical marijuana as a pharmaceutical, then you shouldn't be taxed for it," New Jersey State Assemblyman Reed Gusciora told the Philadelphia Inquirer. "You don't punish a person who's terminally ill and needs the drug."

Sunday, December 16, 2012

The Obama administration has notified a judge that it is abandoning its bid to slap new restrictions on lawyers' access to Guantanamo Bay detainees.

Last month, the justice department filed notice that it was appealing a US federal judge's order barring President Barack Obama's administration from setting new rules governing legal visits and communications at the US military prison in southern Cuba.

But the government filed a motion Friday to the US Court of Appeals for the District of Columbia Circuit in Washington to dismiss the appeal, a type of request usually granted.

"The government hereby respectfully requests that the court dismiss the appeal in the above-captioned matters, with each side to bear its own costs," read the unopposed motion to voluntarily dismiss the appeal.

In a move that triggered outrage from lawyers, the Pentagon and the Justice Department had told attorneys representing Guantanamo prisoners that they could no longer access the jail unless they signed a memorandum of understanding that the court said gave officials overwhelming discretion over visits by lawyers.

The memo would have applied to prisoners who lost their appeals in court or whose cases were otherwise denied or dismissed.

Under the new rules, the lawyers would have also been subjected to restrictions on classified information gleaned from their clients.

In September, US District Court Judge Royce Lamberth cited his opinion rejecting the move as he launched a diatribe against the judicial process at Guantanamo. He noted that since the first detainees were brought there a decade ago, "only a handful" have been tried or convicted.

The judge, who was appointed by Republican president Ronald Reagan, criticized Obama's Democratic administration for engaging in an "illegitimate exercise of executive power" by trying to change the rules.

"In the case of Guantanamo detainees, access to the courts means nothing without access to counsel," Lamberth added.

Attorney General Tom Miller says he needs to hire more lawyers to handle prosecutions and criminal appeals.

He told Gov. Terry Branstad during a state budget hearing on Monday that he is requesting $200,000 to pay for two experienced area prosecutors, who will assist county attorneys with serious crimes, particularly murder and sexual assault. Prosecutors are stretched to the limit, traveling an average of 1,000 miles a month, but the number of general criminal attorneys has been reduced from 10 to 7.5 over the last four years, he said.

Tom Miller

In addition, Miller said he is requesting an additional $150,000 to pay for two entry-level criminal appeals attorneys. Competently defending criminal convictions obtained by county attorneys in a crucial part of the criminal justice system and is critical for public safety, he said.

The caseload for such appeals has increased dramatically the past four years, largely because of a recent rule of the Iowa Supreme Court requiring the briefing of dozens of appeals previously considered frivolous, Miller said. But unlike the state public defender’s office, which can hire outside lawyers to handle criminal appeals, Miller said his office doesn’t have this option.

Miller also said he is passing on the request of Iowa Legal Aid to have its funding increased to $2.4 million from $1.8 million. Because of substantial cuts in federal funding and reductions in other revenues, Iowa Legal Aid is unable to help thousands of eligible individuals, he said.

The attorney general also said his office is working with statewide crime victim coalitions on a regionalization plan to more efficiently deliver victim services. A request for an increased appropriation to develop t his plan is being developed and will be presented to the Iowa Legislature in January, he said.

For fiscal year 2010-11, his agency spent 3,983 hours responding to right-to-know requests for his agency at a cost of $362,386, Delaney said. "It's a great thing for citizen. We need to be open and transparent, but there is a significant cost to it."

Delaney appeared before the Governor's Fiscal Year 2014-15 Operating Budget Hearing Friday and said while the state's public information law allows broad access to public records, there is a cost for that broad access.

Delaney said his agency cannot recoup the full costs of responding to the requests and suggested the state consider making more information available through technology that would eliminate citizen needs to make requests and his agency's time and expense to produce the information.

He noted when former Attorney General Kelly Ayotte ran for U.S. Senate, his office had to go through her emails one by one to respond to one right-to-know request, and alluded to other similar requests.

"We need to make this information available to the public, but the cost to produce government records about actions taken in the past is materially undermining our ability to perform current functions," Delaney said. "We need to have a serious discussion about funding options or alternative ways to allocate these costs."

Delaney asked state budget writers for a 17.6 percent increase in his budget funded through state tax dollars. In the current biennium, the department received $16.1 million, and Delaney requested $18.91 million for the next two-year cycle.

He noted during this biennium, his agency has produced $160 million in revenue through national lawsuits such as the mortgage foreclosure settlement with five large national banks.

"We've demonstrated we are a good investment," Delaney said. "We defy the model that legal services are a cost center and not a revenue center."

Delaney also noted while his agency has lost 15 attorneys through budget reductions, other state agencies are adding lawyers.

"In my opinion, this trend toward the decentralized provision of legal services is not consistent with sound public policy," he said. "It leads to the state taking inconsistent legal positions, a disjointed development of the law, and significant inefficiencies."

After the hearings concluded, Senate Finance Committee Chairman Chuck Morse, R-Salem, said this upcoming budget will be as difficult to balance as the current budget, noting state agencies asked for more than taxpayers could afford.

"Honest revenue estimates, responsible spending, and low taxes are the keys to a balanced budget that will help our economy and avoid the mistakes of the past," Morse said.

Overall, state agencies and institutions have asked for an additional $691 million in spending to be funded by state tax dollars for the next two fiscal years, a 26 percent increase.

The total request - including federal and other funds - is an additional $11.9 billion in spending, or 19 percent.

Gov.-elect Maggie Hassan said Monday the departments' requests are unrealistic given the state's fragile economy and slow growing revenue stream.

"Gov.-elect Hassan has met with many of the state agencies, and she struck the right tone earlier this week when she instructed them to pare back their requests," Morse said. "The ball is now in her court, and we look forward to reviewing her proposed budget."

The hearings are the first of many steps before the state's two-year operating budget is finalized in June.

The Offices of the State Attorney and Public Defenders are asking Florida lawmakers to give them funding to increase the salaries of the state's lawyers. Both offices say they're experiencing high turnover rates, because of the low pay their attorneys receive.

William Eddins, the State Attorney for the First Judicial Court, says across the state, his office is having trouble keeping attorneys in their jobs. And he adds those who stay, are generally less experienced.

"From my standpoint, what you want is a certain number to be there 30 years," said Eddins. "In our circuit, we'd like to keep it a third for thirty years. A third for up to five, and then a third that goes ahead and tries the cases against us. Unfortunately, we're below that now.”

Eddins says if they had the necessary funds to increase salaries or provide better pay bumps, more lawyers might stay with the State Attorney's Offices.

"We're spending a tremendous amount of time training lawyers to be good lawyers to go out in private practice to go out and beat our brains out," remarked Eddins. "And, we do a good job of that. But, I'd like to reach to the point, where we're training lawyers to stay with us. As Betty Jacobs says, ‘they're either leaving or looking.'”

And, Julianne Holt says her office has that same problem. She's a Public Defender with the Thirteenth Judicial Circuit.

"It is problematic from the standpoint of the amount of money and the amount of time you're putting into the training of the lawyers and then when they leave you," said Holt.

"Most of our offices in the Public Defenders Association do in fact do exit interviews and the two primary reasons that people leave, number one, is the lower salaries people believe exist. The other, however, has been the fact that we haven't been able to increase salaries through either cost of living or any type of merit increases.”

Holt says she's found that lawyers at the public defender's office are leaving for similar jobs for nearly double the pay.

Both offices made their funding requests at the first meeting of the Senate Appropriations Subcommittee on Criminal and Civil Justice Thursday.

Many Senators on the panel raised several questions, and committee Chairman, Republican Senator Rob Bradley, says he's not so sure the solution state attorneys and public defenders are asking for is the right way to go.

Sunday, December 9, 2012

New rules for Cayman Islands attorneys that could lead to profound changes in the legal profession and other businesses that use lawyers have been put out for public discussion. The proposed Code of Professional Conduct is part of a raft of legislative changes released on 30 November, including a revised Legal Practitioners Bill and a set of regulations known as the Qualified Firm Overseas Practice Regulations, 2012.

The regulations seek to implement a registration fee for law firms that use non-Caymanian attorneys who perform some work for their Cayman Islands firms while residing overseas. Locally operating law firms that aren't registered under the regulations would essentially not be allowed to operate satellite offices hiring non-Caymanian attorneys.

"Some Caymanian attorneys have ... expressed concerns about the ability of some law firms to operate satellite offices abroad," Cayman Islands Premier McKeeva Bush said in a written statement released last week. "[They] are worried that one day, Cayman legal services could potentially be solely provided from other countries." According to the regulations: "A firm which desires to be recognised as a qualified firm shall apply in writing to the [Cayman Islands Bar] Council for such recognition."

The back entrance of the George Town main courthouse

The Cayman Islands Bar Council is an appointed body formed under the Legal Practitioners Bill, 2012, consisting of the chief justice [or a designate], the attorney general [or a designate], the director of public prosecutions [or a designate], another person appointed by the chief justice, another person appointed by the attorney general, a person appointed by the Cabinet and the director of the Truman Bodden Law School [or a designate].

A number of conditions in considering whether a law firm might become a "qualified overseas" practitioner are listed in the regulations. Some of the more than 40 qualifiers include: the number of Caymanian partners and associates in the firm; whether the firm provides articles for Caymanian law school graduates; whether the firm has in-house training available; and whether the firm has Caymanian partners who have advanced as the result of post-qualification training.

Most international law firms have teams practising Cayman law from overseas offices, for example, by providing for the use of Cayman vehicles such as funds or companies by foreign clients. Often this work will generate business that is going to be serviced from Cayman, in addition to the establishment work that is done in Cayman. Cayman Islands companies are, for example, popular vehicles for listings on the stock exchanges in Hong Kong and Taiwan.

The Caymanian Compass sought comment from all major groups representing the legal profession within the Cayman Islands on the bill prior to publishing any articles on the Legal Practitioners Bill and related rules and regulations.

The Cayman Islands Law Society provided the following response: "[The law society] has not been given the opportunity for a detailed review of the draft bill that has been circulated for consultation. [The law society] cannot support any bill that would undermine the independence of the profession, damage it by unnecessary regulation, increase the financial burden on practitioners or damage the interests of Caymanian attorneys. We cannot support provisions that would prove impractical in modern practice, thereby preventing the continued growth of the profession to the detriment of the economy and the stifling of opportunities that a robust economy would create for Caymanians.

"We are encouraged by and absolutely share with the premier his aim and objective of enacting an updated Legal Practitioners Law that will modernise this Law in line with international standards to the further success of our economy and community as well as promote and protect the interests of Caymanian attorneys-at-law."

During a Thursday media briefing, Cayman Islands Law Society President Alasdair Robertson referred to the practice of operating satellite or outpost offices in other countries as "insourcing", a practice that could lead to job creation in the Cayman Islands.

"If we don't have those offices, then other jurisdictions, in particular we think the British Virgin Islands, would be in a position to sell that jurisdiction much better than ours, to our detriment," Mr. Robertson said.

He also added the law society's view that some regulation was essential, since they wished to ensure "Cayman firms were in control" of overseas operations where such control did not exist at the moment.

The issue of outsourcing [or insourcing] in the funds industry has been something of a hot topic of late among offshore investment types.

Canover Watson, managing director of Admiral Administration, has said that globalisation is changing the approach of the law firms.

"Firms that historically were Cayman-centric, if you look at Walkers or Maples, firms that were integral to developing the products in Cayman, when they promoted themselves to the outside world, inherently they were promoting Cayman," Mr. Watson said in this week's issue of The Cayman Islands Journal. "Today they are global firms and they are promoting their products, and when they go out in the market place they are not necessarily focused on this is a Cayman product and this is the Cayman solution. They say this is a solution that we can provide globally wherever you are located.

That is the challenge that [the Cayman Islands Monetary Authority] and the government are going to have: How do you now sit with those firms that have a global focus?"

Mr. Watson said in the Journal report that, as a service centre in general, it is an issue whether Cayman has the infrastructure to meet the demands of the hedge fund industry. Lower labour costs and better access to skilled labour are now provided in other jurisdictions such as Canada and Ireland, he said.

"And certainly we are seeing much more of an outsource solution where administrators may contract the funds in Cayman, but outsource certain aspects of the services of that fund to places as far as India."

This trend is going to continue, he predicted, simply because Cayman does not have a sufficient number of people to meet the demands of the industry. Post-2008 there has been a trend toward more transparency and reporting, for example, with a transition from a monthly to a daily reporting structure, making the industry more labour intensive.

"Cayman does not have the labour force to support that," Mr. Watson said, putting into question the physical presence of the industry in Cayman going forward.

Growth of the fund administration industry has taken place elsewhere in the world, but not in Cayman, Mr. Watson said, referring to the largest fund administrator CITCO, which created 2,000 jobs in Toronto and 1,000 jobs in Nova Scotia.

A move seeking a certain amount of free work – called pro bono publico service – from attorneys practicing in the Cayman Islands has been written into the draft Code of Professional Conduct put out for public comment this week.

According to rule 6.1 of the proposed code: "Every attorney-at-law has a professional responsibility to provide legal services to those unable to pay. An attorney-at-law should aspire to render at least 10 hours of pro bono publico legal services per year."

The code proposes that a substantial majority of the free work be granted to "persons of limited means" or to various charitable organisations or church groups. It also advises that delivery of legal services for individuals or groups seeking to secure or protect civil rights should be done at a "substantially reduced" fee.

"In addition, an attorney-at-law should voluntarily contribute financial support to organisations that provide legal services to persons of limited means," the draft code states.

The proposal to require Cayman Islands attorneys to contribute either their time or their money was set out in a draft of the Legal Aid Bill earlier this year. However, that proposal has not come to the Legislative Assembly. According to a summary of the proposal, every attorney-at-law in Cayman to whom a practicing certificate has been issued "shall render pro bono legal services to persons in accordance with this legislation", or face discipline under the territory's Legal Practitioners Law.

Attorneys can have their requirement for pro bono services discharged by annually providing at least 25 free work hours at the request of the court system's director of legal aid services or by paying an annual fee of $2,500.

Right now, legal aid services – providing attorneys to poor and/or indigent defendants; mainly in criminal cases – costs the Cayman Islands roughly $1.8 million per year. The money is controlled by the Ministry of Finance under the law, but the courts administration office handles the assignment of legal aid cases. Private practice lawyers undertake legal aid and are paid a set fee of $135 per hour for their work.

The Cayman Islands Defence Bar Association, in a statement sent to the Caymanian Compass in May, decried this particular provision of the draft Legal Aid Bill.

"The underlying proposition that attorneys should be responsible for the funding of the legal aid system is fundamentally misconceived," the defence bar opined. "Will doctors be required to work for free if there is a funding shortage for public health care?"

The proposed Code of Professional Conduct also sets out specific instances in which attorneys are allowed to make public statements regarding matters before the court.

In general, the section of "trial publicity" for attorneys states: "An attorney-at-law who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the attorney-at-law knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Some exceptions to this rule are set out in the code of conduct.

They included statements involving the claim, offence or defence involved and the identity of parties involved, except where that information is prohibited from release by law; any information contained in a public record; confirmation that an investigation of a matter is in progress; the schedule for or result of any step in litigation; requests for assistance in obtaining evidence; a warning of danger concerning the behaviour of a person involved when there is reason to believe that substantial harm to the public interest is likely.

The code generally sets out that attorneys may make reasonable statements "required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the attorney-at-law or the attorney-at-law's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity".

Government attorneys are to be bound by the same rules, according to the code.

Former law clients of Kenneth F. Bernas of East Aurora, David R. Schnell of North Tonawanda and Alan E. Fielitz of Lackawanna have been paid $253,254 this year through the state's Lawyers' Fund for Client Protection, according to fund spokesman Timothy O'Sullivan.

Over the past three years, the fund - funded by registration fees paid by the state's 271,000 lawyers - has reimbursed more than $1.2 million to 33 former Bernas clients, he noted.

Bernas was convicted last year of swindling 53 clients by taking out presettlement loans in their name without their knowledge. He was sentenced to 2 1/3 to seven years in prison and ordered to pay back $1.8 million in the criminal case.

In addition, about a half-million dollars from the sale of a $2 million mansion Bernas built in East Aurora was also used to reimburse clients.

Schnell was sentenced in August for stealing almost $34,000 from a client's estate. He was sentenced to six months in jail and five years on probation, and ordered to repay the money.

Fielitz was sentenced in March 2009 to four months of weekends in jail for stealing about $102,000 from six clients.

The Court of Appeals in Albany created the Lawyers' Fund in 1982 and since then has reimbursed more than $162 million to 7,208 eligible law clients defrauded by 1,020 former attorneys they had trusted, O'Sullivan noted.

"Whereas a handful of lawyers misuse client money, the legal profession in this state has agreed to assume the responsibility to reimburse losses, and no other profession provides such protection to its clients," said Eric A. Seiff, the Manhattan lawyer who is chairman of the fund's board of trustees.

While the fund cannot compensate for legal malpractice or assist in resolving disputes over legal fees, its newest type of loss reimbursement involves lawyers who took money by falsely promising to provide legal help in loan modification cases.

Monday, December 3, 2012

Factors that can spur workers to hire lawyers include the severity of the injury and the employee's relationship with the employer.

It's no secret that workers' compensation cases involving attorneys are generally more expensive. In fact, workers' compensation, started a century ago to remove workers and their employers from the tort system, remains highly litigious.

It does not have to be this way, however. By uncovering the reasons that injured workers hire attorneys, employers can take active steps to lower unnecessary involvement.

To answer the "why" question, the Workers Compensation Research Institute (WCRI) asked 6,823 injured employees in the 11 states that represent 46% of paid workers' compensation benefits. Those surveyed had lost more than seven days of work from work-related injuries and illnesses and had hired legal representation. (Seventy-one percent of the workers surveyed did not hire attorneys.)

Their answers shed light on ways to help workers get through the system without attorneys. Not surprisingly, the study found that workers are more likely to seek attorneys when they feel threatened. Sources of perceived threats can take different forms. The character of the employment relationship, for example, was a factor for the 23% who strongly agreed that they hired attorneys because they feared being fired or laid off. Fifteen percent also strongly agreed that they needed attorneys because their employer could perceive their claims as illegitimate.

Miscommunication in the claims process was another significant factor. In fact, 46% said they hired attorneys because they felt the claim had been denied when, in fact, it had not yet been accepted into the process. Attorney involvement among workers with the most severe injuries were 15 percentage points higher than those with mostly minor injuries.

The WCRI also found that the worse the injury and the more severe the illness, the more likely it was that attorneys would be involved. Claims from soft-tissue injuries, for example, were more likely to involve attorneys. These cases can be complicated, and nonwork-related causes can be an issue.

Employer size can also be a factor, but with offsetting implications. Larger companies are more likely to have co-workers who have experience with workers' comp claims and attorneys, which can encourage attorney involvement. On the other hand, larger employers are more likely to provide timely outreach to injured workers, with specialized staff trained to handle personnel issues.

Workers in smaller firms, however, are more likely to have direct personal relationships with their employers. They are less likely to file claims.

Job tenure also affected the likelihood of workers hiring attorneys. Workers who had less than one year on the job when they were injured were more likely to hire attorneys. Those with more than 10 years with the same employer were less likely to involve attorneys due to employer loyalty. This was offset, however, by those who feared a pay cut from not being able to return to a job with the same employer.

Attorney involvement tends to increase as workers age: 20% of workers age 55 or older hired attorneys. About 17% of those between the ages of 25 and 54 hired attorneys, and 9% of 15-to-24-year-olds did so. Older workers, the study hypothesizes, are more likely to know those who have relied on workers' comp attorneys.

Union membership was generally not a factor, with pros and cons of union involvement cancelling each other out. Unions provide valuable information to workers, but they tend to have connections to lawyers. At the same time, unions provide protection for reemployment and may also help workers navigate the workers' comp system, partially substituting for attorneys' roles.

Those who were interviewed in Spanish hired attorneys twice as often as those who were interviewed in English. These findings reflect the importance of understanding the demographics of the local labor force. The less-educated workers were more likely to hire an attorney because they were more likely to be intimidated by the claims process. High school graduates were six percentage points more likely to hire attorneys than college graduates.

What employers can do

Thankfully, there are ways that employers, claims organizations, and state agencies can decrease or eliminate unnecessary legal action.

Training supervisors is one way to make a difference. Supervisors are often in the best position to shape workers' initial expectations about what should happen, post injury.

Communicating in a clear and timely fashion about the status of the claim can also reduce the likelihood of attorney involvement. The largest factor predicting attorney involvement is the perception by a worker that the claim has been denied. Workers need materials that explain the claims process and also tell them what to expect.

Paying attention to demographic factors can make a difference. An injured employee's age, education, and cultural background can affect the likelihood of attorney involvement.

Eliminating system features that encourage denials or payment delays will benefit injured workers and their employers overall. Since delays may be misperceived by the workers as denials, employers can encourage state agencies to produce and provide educational materials and telephone help lines.

By Richard A. Victor is executive director of the Workers Compensation Research Institute

U.S. government lawyers have responded to Dallas County Commissioner John Wiley Price's scathing retort in a civil forfeiture case with a heated legal missive of their own.

John Wiley Price

In it, they say Price has bogged down the government with his legal tactics in the forfeiture case, thus delaying progress on the criminal investigation of Price.

Price's attorney, Billy Ravkind, has called the government's forfeiture case "nothing more than a sham or a ruse." He has said its only purpose is to try to get evidence the government needs in its criminal investigation of Price.

The government's response, filed late Tuesday, criticizes Price's legal arguments that seek to avoid a default judgment against him. Such a judgment would mean the government could keep the money it seized from him last year during a raid.

"Price now seeks to wrestle out of a crises of his own creation," said the government's filing, authored by assistant U.S. attorneys Walt M. Junker and Katherine Miller.

They argue that Price missed a deadline to file an answer to the forfeiture suit, meaning he doesn't have legal standing to contest it.

Price now expresses "sound and fury" over the government's efforts to seek a default judgment in the case, the government lawyers wrote. At the same time, Price "mocks the delay" he himself created by needlessly litigating the case, they said in the filing.

The government said that before the forfeiture case was filed, Price requested that certain seized property including his business and tax records be returned so he could document his ownership claims. He has yet to properly do so, Junker and Miller wrote.

"Significant portions of the criminal investigation were then delayed, and personnel at the FBI and United States Attorney's Office were re-tasked to expedite copying of the seized records," the government lawyers wrote.

"The Government is not the litigant engaging in gamesmanship," Junker and Miller wrote in the filing.

It is now up to U.S. District Judge Sidney Fitzwater to rule on whether Price can continue to contest the forfeiture of his money.

Price's top assistant, Dapheny Fain, is claiming some of the money agents seized from a safe in Price's home. The government also seeks a default judgment against her.

The seized money includes $229,590 found in Price's home and $230,763 confiscated from a land deal. Price is claiming ownership of $115,000 found in the safe as well as the money from the land sale. Fain has claimed the remaining money found in the safe. Her attorney has said Price was holding it for safekeeping.

Price has denied any wrongdoing, and no one has been charged with any crime. Price and Fain say the money came from legitimate business dealings. The government says it is proceeds of crimes.

Sunday, December 2, 2012

The internet and social media is making it harder for lawyers to know what's OK in presenting their services to the public.

Facebook can be good for business if lawyers use the social networking site properly

Lawyers are advised to look to ethics rules to take precautions in light of the uncertainty. However, the conundrum is there is even uncertainty in the rules themselves.

Rules, rules, rules

Attorney ethics are governed by rules of professional conduct promulgated by the Supreme Court in the state in which an attorney is authorized to practice.

The Model Rules of Professional Conduct ("MPC") are issued by the American Bar Association, a voluntary nongovernmental bar association without lawmaking power. The Model Rules themselves have been adopted, in whole or in part, as the professional standards of conduct by the judiciaries or integrated bar associations of 49 U.S. states (California adopts is own rules while New York has as significantly modified version of the MPC).

The section of the MPC most states use to determine what is and what is not acceptable by attorneys is entitled "Information About Legal Services" which includes guidelines on such conduct such as communication concerning a lawyer's services, advertising, solicitation of clients, communication about specialization and other information.

The 3 most perplexing sections on Information About Legal Services in the New Media Age are:

1. Solicitation

Where lawyers get confused most in the internet and social media age is solicitation of clients.

Solicitation is a communication directly targeting a specific individual and offers to provide them legal services. Lawyers are prohibited from soliciting clients in person, over the phone (cold calling), or in "real-time electronic contact".

The term "real-time electronic contact" is a broad term which is very unclear as to what behavior is prohibited or admissable.

the person "who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self?interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over?reaching."

The objective of the rule is to ensure potential clients evaluate all potential options for obtaining an attorney and the attorney soliciting the client is properly vetted before he is hired.

Emails are not included as real time electronic contact. It has been debated whether Facebook chats, response to non-lawyer general Facebook status updates discussing the need for legal services, and mentioning someone on Twitter qualify as "real-time electronic contact".

In addition, the rules give an exception for solicitation to those the lawyer has familial, close personal, or prior professional relationship with the lawyer. In the world of Facebook, Twitter, and LinkedIn where people blind friend, follow, or become connections with one another yet engage in numerous discussions and interactions online, what is considered "close personal" or "prior professional" relationship is also murky.

"Tracy Who?" is what a potential client might ask, even though you're "connected" to them

Becoming a LinkedIn connection of someone requires a user to admit he has a personal or professional connection with someone. A user on Twitter has the option of following someone back or not, as well as blocking them. Facebook has the option of friending someone or not, blocking them, as well as merely allowing the person to "subscribe to them where a user can limit the information he conveys to his "subscribers".

In order to navigate the minefield of this area where states may have yet to catch up with the land mines of social media, attorneys should not make the first contact with a potential client on social media, even if that person posts a status update or tweet looking for a lawyer. Attorneys should allow a mutual contact or that person to contact them, unless attorneys personally know the potential client very well outside of social media.

2. Advertising

Another area where lawyers get confused most in the internet and social media age is advertising.

Advertising consists of of lawyers addressing the public to make known their services. Attorneys are allowed to advertise to the public via commercials, billboards, websites, and well as through letters and emails directly to potential clients. Also included is "public media".

When using email, Facebook or LinkedIn to reach advertise to new clients, using social media should operate like sending a letter. It should state the name, address, and phone number for the lawyer, and well as state communication is advertisement material.

On Twitter, Instagram, Facebook chats, or status updates involve more instantaneous communication, it is not advisable for attorneys to "advertise" or be seen as soliciting a client in "real-time contact". Although some individuals take longer to contact and can generally ignore a message, just like a phone conversation or a knock on the door, doing so may be cumbersome an invitation for some form of coercion. Attorneys are strongly advised to stay away from this method of "advertising".

3. Specialization

Social media invites most laypersons to embellish on their lives, but attorneys should be very wary of doing the same about their practices. Attorneys should not state untruths of their record on social media or declare themselves a "specialists" or "certified" when it is not the case or running afoul of the Model Rules on being misleading.

Bottom line

When it comes to social media and the internet, being social can put attorneys in a web of trouble if they do not take the proper steps.

With a healthy understanding of the rules, lawyers can take advantage of new advances with robust strategies to mine for new clients while protecting themselves and their practices.

Exavier B. Pope, Esq. is an entertainment and sports attorney, media personality, syndicated writer, Fortune 500 speaker and peak performance strategist, author, philanthropist, and sports business and law blogger for ChicagoNow. All opinions expressed are those solely of Mr. Pope.

Tensions between cyclists and pedestrians are always high in big cities, especially a city like New York. When walking on extremely crowded sidewalks, it's never a pleasant experience to be nearly blindsided as some dude on a bike whizzes by at high speed without a care in the world. We pedestrians are arguably more balanced than those riding bicycles - if one of us got knocked down, we might complain about a scraped knee for a week or two before getting over it. It wouldn't really be that big of a deal.

But if a cyclist gets knocked down, the consequences could be much worse, and one Sidley Austin lawyer is learning just what a big deal something like this can turn into once the courts are involved. Back in June, Marshall Feiring, tax counsel at Sidley Austin, was arrested and charged with third degree assault and second degree harassment after he allegedly stepped into the bike lane in Central Park and made contact with a female cyclist, causing her to crash.

As if the criminal charges weren't enough, Feiring is now being sued over the incident….

According to DNAinfo, Feiring got involved in the turf war between pedestrians and cyclists when he "intentionally yanked a heavy-link chain around Courtney Fullilove's shoulder after she swerved to avoid him." Apparently Fullilove, a Columbia graduate who's now a history professor at Wesleyan, was carrying her bike-lock chain around her torso (instead of in her backpack, like a normal person), and according to the civil complaint filed earlier this week, when Feiring allegedly made contact with Fullilove, he "pull[ed] her from her bicycle and slamm[ed] her forcefully to the ground."

That sounds like it must have been painful. So painful, in fact, that Professor Fullilove alleges she's been put out of work because of her injuries.

Dear Lord, this Sidley attorney has allegedly robbed Fullilove of her chance to attain the professorial prestige of tenure in the precise time frame in which she wanted it to occur. Oh, the outrage! Oh, the humanity!

Here are some additional details on Feiring's criminal case and civil case, from DNAinfo:

His next case appearance in Manhattan Criminal Court is Dec. 18.

His lawyer, Sanford Talkin, declined to discuss the incident, but vowed to take the case to trial.

"I won't get into the details, but the complaint does not nearly have all the facts of the incident," he said. "We're looking forward to defending this case."

Did anyone stop and think that this could have been an accident, and that Feiring didn't have it out for bicyclists all across the land? Because as nice as it would be to push a biker and laugh your ass off while watching a serious case of road rash unfold, doing so on purpose really isn't worth the damage to one's career in Biglaw.

Schadenfreude can be fun, but let's face it: sometimes attorneys get falsely accused. If Feiring goes to trial and prevails, it wouldn't be the first time a Biglaw big-shot has gone to court and cleared his name.

Sunday, November 25, 2012

Lawyers for a Rancho Cucamonga woman suing Pomona Valley Hospital Medical Center are asking the state Supreme Court to require the hospital's review board to release medical records they say will help them prove their case.

The patient, April Cabana, alleges that the hospital subjected her to an experimental procedure without her knowledge or consent. The hospital claims state law does not require it to release the documents.

Cabana's attorneys filed their request earlier this month.

The court is expected to determine within 60 to 90 days if it will hear the matter, said Cabana's attorney, Bijan Esfandiari.

The state's highest court only reviews 5 percent to 10 percent of the cases sent its way, said Esfandiari, who expects to be granted a hearing.

"I think (we) have a good chance," he said.

Cabana's lawyers are seeking documents from the hospital's internal review board. The board would have had to approve Cabana's procedure, Esfandiari said.

Pomona Valley Hospital Medical Center

A trial court ruled the hospital must release the documents, but the hospital's lawyers attorneys appealed and won that case.

"Pomona Valley Hospital Medical Center is pleased that the Appellate Court ruled in our favor in this law suit," said Kathy Roche, a hospital spokeswoman. "We don't believe the plaintiff's petition to a higher court has any merit."

Some hospital records are protected, especially if they involve physicians' reviews of their colleagues' performance, Esfandiari acknowledged.

He plans to argue, however, that Cabana is seeking records related to medical research that are not subjected to confidentiality law but those being sought involve research, Esfandiari said.

Cabana's lawyers filed the lawsuit in July 2011. The suit names Dr. Ali Mesiwala, who treated Cabana, the hospital and a medical device manufacturer.

Bankrupt solar-panel company Solyndra LLC and the criminal investigation into its downfall have faded from public view, but the law firm representing the company in a grand jury probe quietly has stayed busy, racking up nearly a half-million dollars in legal fees over the past year, records show.

Aside from documenting the personal fortunes of lawyers making up to $660 per hour, the fees are significant because of why the law firm was hired in the first place.

California solar firm Solyndra

Weeks after Solyndra went bankrupt last year, having burned through more than a half-billion dollars in federal loan money, the company hired the K&L Gates LLC law firm for what lawyers called a "federal criminal investigation."

Now the firm wants to get paid.

Its final bill: $479,885, reflecting nearly 1,200 hours of work, according a review by The Washington Times of law firm invoices. About half of the money included in the firm’s final bill already has been paid out, according to the firm's fee application filed in U.S. Bankruptcy Court in Delaware.

Based on a review of earlier invoices filed by K&L Gates, The Times first reported last year on the existence of a grand jury probe in the wake of Solyndra's downfall.

Attorneys did not respond immediately to messages Wednesday. But Jeffrey Bornstein, a K&L Gates partner and former federal prosecutor who earned $640 to $660 per hour for his Solyndra legal work, previously told The Times in an email that the solar-panel maker was cooperating with federal authorities.

With no clear sign of pending charges, the size and scope of the firm's legal work shed at least some light on the secretive criminal probe into Solyndra, which government officials still will neither confirm nor deny publicly.

Asked Wednesday whether the grand jury probe into Solyndra has concluded or remains active, Jack Gillund, a spokesman for the U.S. attorney's office in San Francisco, replied, "We have no comment."

In the firm's latest fee application, however, K&L Gates stated its lawyers had been communicating among the company, the U.S. attorney, the FBI and congressional staffers, as well as responding to subpoenas and other law enforcement requests.

Invoices provide a more detailed look at how attorneys spent their time. A bill reflecting legal work performed earlier this year shows a K&L Gates employee drafting a letter to "AUSA," which refers to assistant U.S. attorney, concerning "laptop documents."

Another entry refers to a conference with the Justice Department "regarding response to document request." Yet another entry describes meeting with an unnamed vendor regarding "copying computer image for production to DOJ."

An earlier bill from last year refers to a meeting between Mr. Bornstein and an assistant U.S. attorney identified as "J. Nedrow."

Jeffrey Nedrow is a prosecutor with the U.S. attorney's office for the Northern District of California. He was a prosecutor in the criminal trial against former San Francisco Giants slugger Barry Bonds.

The firm's fee application, filed this week, also refers to an exhibit containing an hour-by-hour explanation of the firm's work in recent months, including November, but that exhibit could not be located on the public docket. But another law firm hired to represent the company in its bankruptcy listed an entry in a separate legal bill "Confer with Jeff Bornstein re: update on criminal" as recently as August.

When contacted by The Times about the missing entry, a bankruptcy clerk referred the issue to attorneys in the case, who did not respond by deadline Wednesday.

Despite the hundreds of hours spent representing Solyndra in connection with various investigations, K&L Gates' work is hardly a clear sign that the Justice Department will file charges.

The Justice Department also has been investigating the high-profile collapse of MF Global Holdings Ltd., a brokerage headed by former New Jersey Gov. Jon Corzine, a big Democratic Party fundraiser. So far, nobody has been charged in that investigation, and media reports have suggested that charges are unlikely.

What's more, R. Todd Neilson, the former FBI agent hired by Solyndra to pore over the company's financial books, spent months investigating the company's collapse but ultimately said he couldn't come up with any evidence of criminal wrongdoing.

Serving as Solyndra's chief restructuring officer, Mr. Neilson found no wrongdoing by the company. Still, he concluded that investors and lenders, including the U.S. government, knew the company faced big risks, such as falling solar-panel prices and a global recession that cut demand sharply.

Mr. Neilson's detailed report in March concluded that "no material funds were diverted from their original use."

But weeks after Mr. Neilson made his findings public, K&L Gates invoices showed the federal probe remained unsettled with investigators busy looking for their own answers.

Sunday, November 18, 2012

A Happy Valley man indicted on child pornography charges and who reportedly expressed an interest in torturing and eating children may never get to trial.

Attorneys in the federal child porn case are reviewing computer evidence with an interest in negotiating a resolution to avoid going to trial, according to court documents filed Thursday in U.S. District Court.

Jason B. Scarcello

A status conference scheduled Friday for Jason B. Scarcello, 42, was put off until Jan. 11 at the request of both the prosecutor and defense attorney, a spokeswoman with the U.S. attorney's office said.

If convicted, Scarcello, who has pleaded not guilty to the charges, faces five to 20 years in prison, as well as a $250,000 fine.

He was arrested in July after federal agents executed a search warrant at his Happy Valley residence and discovered CDs and DVDs containing violent and sexually explicit images and videos of children.

Authorities also have said he engaged in online chats in which he discussed torturing and eating children.

Scarcello's attorney, Thomas A. Johnson, has admitted the chats were "disturbing and bizarre," but claims that they were also only fantasy, not reality.

Scarcello was one of 43 people arrested as part of an international child pornography investigation after authorities said they found violent child pornography on his computers.

According to a search warrant affidavit, suspicions about Scarcello arose after investigators determined he had engaged in computer chats with a previously charged suspect in Kansas, Michael Arnett.

From August 2010 through March, Scarcello and Arnett allegedly discussed the abuse of child victims via computer chats.

According to the indictment, Scarcello also used a file-sharing program between April and June to download movies depicting the sexual exploitation of children.

He was indicted and charged with receipt of child pornography. The case is part of an ongoing Homeland Security-led investigation that originated in Boston and spread worldwide. So far the investigation has resulted in the arrest of 43 people and the rescue of 140 children.

City officials plan to enlist private lawyers for added legal muscle in their fight against problem and nuisance properties.

The Bar Association of Metropolitan St. Louis is organizing a group of lawyers who will work for free with city attorneys on the Problem Properties Task Force, officials announced Friday.

The task force was formed more than a decade ago to crack down on dilapidated properties or those that otherwise cause or attract trouble in their neighborhoods.

A team of seven attorneys from the city counselor's office has led the effort to date. City officials are hoping the new partnership will bring in dozens of lawyers, who can help bring resistant property owners to court and review and strengthen the city's ordinances.

"Rundown properties and nuisance properties can bring down a whole block," Mayor Francis Slay said at a news conference in his office.

The task force, he added, has "played a key role in the renaissance of our city, but we know there's a lot more to do."

Last year, the task force sent out just more than 2,000 cease-and-desist letters to landlords for nuisance issues, said Matthew Moak, an associate city counselor. The problems can range from loud parties to overcrowding - things that bring down the quality of life in a neighborhood.

Police issued about 1,800 nuisance summons to those who ignored the initial letter.

And the task force held more than 2,500 meetings with property owners, Moak said.

Every year, he said, the task force brings about 1,000 run-down properties into compliance with the city's health and public safety codes.

The private lawyers will be helping with the most resistant property owners - those whom the city decides to take to court.

The work mostly pertains to ordinance violations brought in municipal court, but the city can also bring public nuisance actions in St. Louis Circuit Court for stubborn cases, said City Counselor Patti Hageman.

Heather Hays, president of the bar association, said the city's private attorneys "want to make their neighborhoods better, and want to make their community better."

In response to a question, Slay rejected any notion that the partnership might be a breeding ground for political favors.

Tom Minogue of the Thompson Coburn firm, which has already signed on some of its lawyers, said pro bono work is just part of the job, and here, the lawyers get to help better the city.

"It's a higher calling to be a lawyer, and that's part of our calling," he said.

Sunday, November 11, 2012

BP Plc (BP/) and the lead lawyers representing victims of the 2010 Gulf of Mexico oil spill urged a judge to approve a proposed $7.8 billion partial settlement of claims, while attorneys for thousands of plaintiffs sought rejection or modification of the agreement.

In a separate courtroom in New Orleans, a second federal judge yesterday rejected a bid by a former BP engineer to dismiss one of two criminal charges related to estimates on the size of the spill. Kurt Mix, who has pleaded not guilty, was charged with obstruction of justice for allegedly deleting text- message strings from his mobile phone.

BP, based in London, reached the $7.8 billion settlement in March to resolve most private plaintiffs' claims for economic loss, property damage and injuries related to the explosion of the Deepwater Horizon oil rig and subsequent spill. U.S. District Judge Carl Barbier, who granted preliminary approval to the settlement in May, is considering arguments on the agreement at a fairness hearing that started yesterday in New Orleans.

A visual image of the BP oil spill

The BP settlement underpays some claimants and unfairly excludes others, lawyers for the objectors said in court papers before yesterday's hearing. Lawyers representing more than 13,000 spill victims have attacked the settlement's fairness, BP said in a filing last month seeking approval from the judge.

"Two identical businesses across the street from each other received dramatically different" settlement offers based on the deal's terms, Stuart Smith, a lawyer for Florida business owners objecting to the accord, said at yesterday's hearing. "It doesn't make any sense and it isn't fair."

‘Not Affected'

Barbier began yesterday's hearing by noting many objectors to the settlement don't have the right to challenge the accord.

"If you are excluded from the settlements, your rights are not affected," the judge said at the hearing yesterday. Barbier said spill victims not covered by the accord can press ahead with their claims in court. "If you are excluded, you have no legal standing to object to the settlement."

The accord will resolve more than 100,000 damage claims tied to the spill, plaintiffs' attorney James Roy told the judge yesterday while urging him to approve the agreement.

The claims process set up after the settlement was announced has already paid out more than $1 billion, before final approval, said Roy, co-lead attorney on the plaintiffs' steering committee, which has pursued the litigation against BP.

The BP settlement "was a hard-fought negotiation. Nothing was easy," Roy said. "This is not a group of insurance adjusters trying to save money for BP."

Settlement Familiarity

Given Barbier's familiarity with the spill settlement and the requirements of U.S. maritime law, he'll probably approve the accord after giving people a chance to have their say about it, said Carl Tobias, who teaches complex litigation law at the University of Richmond in Virginia.

"I'd say the chances are pretty good that the settlement will win the judge's final approval," Tobias said in a phone interview. "He's lived with this case for more than two years and he's familiar with all the intricacies of this deal."

After Barbier gives the settlement his stamp of approval, spill victims who aren't included in the settlement probably will appeal, Tobias said. There's little chance that a federal appeals court in New Orleans will find fault with Barbier's handling of the spill settlement, he added.

Appellate judges often show great deference to their colleagues assigned to oversee complicated class-action cases spawned by disasters like the Deepwater Horizon spill, he said.
Experience, Expertise

"These judges have been appointed because of their great experience and expertise with the type of case they are handling," Tobias said. "The appeals courts are generally loathe to overturn the decisions they've made."

The blowout and explosion aboard the Deepwater Horizon drilling rig in April 2010 killed 11 workers and started millions of barrels of crude leaking into the gulf. The accident prompted hundreds of lawsuits against BP; Transocean Ltd. (RIG), the Vernier, Switzerland-based owner and operator of the rig; and Halliburton Co. (HAL), which provided cementing services.

BP's proposed partial settlement of private claims was reached March 2, days before a trial on liability for the spill. The settlement establishes two separate classes, one for economic loss and the other for physical injuries related to the spill or the cleanup. BP estimates the settlement, which is uncapped, is worth about $7.8 billion.

Claims Excluded

The settlement excluded claims of financial institutions, casinos, private plaintiffs in parts of Florida and Texas, and residents and businesses claiming harm from the Obama administration's moratorium on deep-water drilling prompted by the spill. It also doesn't cover federal government claims and those of Gulf Coast states Louisiana and Alabama, or lawsuits against co-defendants.

BP has been in negotiations with the U.S. Justice Department to settle the federal claims as well, the company said in an Oct. 30 regulatory filing. BP has provisioned about $38.1 billion for spill costs and has paid more than $8 billion in compensation to individuals, businesses and government entities so far.

‘Full Compensation'

BP faces a potential $17 billion fine by the U.S. under Clean Water Act provisions, should it be found grossly negligent for the spill. The issue of gross negligence will be determined at a nonjury trial over liability for the explosion of the Deepwater Horizon drilling and the subsequent oil spill now set for Feb. 25 before Barbier in New Orleans.

BP has urged Barbier to grant final approval to the settlement, arguing in a court filing last month that the agreement "will bring full compensation to all class members, including those on the Gulf Coast, while resolving a major component of the Deepwater Horizon litigation."

The objectors represent "only a small fraction of the total class members," the company said.
Many of the objections to the settlement have been brought by people or businesses that were excluded from the agreement reached in March, Stephen Herman and Roy, lawyers for the plaintiffs, said in a separate filing last month.

Even if claims were brought to trial and BP was found to be grossly negligent, pursuing individual lawsuits instead of resolving them through a mass settlement would take years, Herman and Roy said.

‘Take Decades'

"No one can deny that these could take decades to resolve conclusively through litigation," they wrote.

Smith, who represents business owners in Destin, Florida, argued yesterday that the zones created to assess economic damages are "flawed and inherently unfair" and should be redrawn.

"The economic loss zones were hotly debated," Richard Godfrey, a lawyer representing BP, told Barbier. The zones were based on where businesses and properties were located in relationship to the Gulf's beaches, Godfrey said. Local experts were drafted to review zone-placement decisions, he added.

Barbier noted that he doesn't have the legal power to alter the settlement, but only has authority to "approve or disapprove" the deal.

The judge also questioned objectors' claims that attorneys who helped craft the settlement colluded with BP to hold down the value of accord. Barbier said those allegations "strike me as incredible."

Commercial Fishermen

Joe Waltzer, a lawyer representing commercial fishermen damaged by the spill, said the $2.3 billion set aside to compensate his clients is not being paid out fairly.

Fishermen, crabbers and oystermen are getting "very little in the way of income-replacement payments," Waltzer told Barbier. "We want to make sure there is adequate compensation" for all who make a living harvesting fish from the gulf, he added.

Other objectors focused on problems with the medical- benefits portion of the settlement.

The state of Louisiana has also objected to the agreement, contending in a filing in September that the terms "fail to fully compensate victims for the extensive damages already suffered as a result of the spill, and for the damages that are likely to occur in the future."

Louisiana's lawyers won't be speaking at the hearing because the state wasn't part of the settlement.

Criminal Case

In the criminal case, the only one so far arising from the incident, the defendant asked U.S. District Judge Stanwood Duval yesterday to dismiss one of the counts.

The former engineer worked on internal BP efforts to estimate the amount of oil leaking from the Macondo well. The government alleges that Mix destroyed evidence the U.S. was seeking for its investigation of the spill.

The two counts of the indictment concern text messages between him and a contractor and another string with his supervisor. Mix asked Duval to dismiss the second count, covering 182 messages to the contractor, before trial as a matter of law because the content of the texts was "patently innocuous."

The issue should be determined by a jury, U.S. District Judge Stanwood Duval said at a hearing in New Orleans yesterday. Many of the texts appeared innocuous, while "others might have meaning which the court can't divine now." Duval said.

‘Last Person'

Mix, who has pleaded not guilty, faces a Feb. 25 trial. Duval said yesterday he may change the date.

"He's the last person who deserves to be sitting in this courtroom on obstruction of justice charges," McPhee told the judge at yesterday's hearing. "Count two can and should be dismissed now."

Mix knew he wasn't supposed to delete anything as the U.S. investigated the 2010 incident, prosecutor Richard Pickens told the court yesterday.

"The only issue before the court is whether he had a wrongful purpose," Pickens said. "Simply denying a grand jury the opportunity to examine whether or not material was relevant -- that's obstruction. It's just that simple."

The civil case is In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, MDL-2179, U.S. District Court, Eastern District of Louisiana (New Orleans). The criminal case is U.S. v. Mix, 12-cr-00171, U.S. District Court, Eastern District of Louisiana (New Orleans).